On Her Majesty’s Secret Service

By David Langsam
Which child of the 1960s and ‘70s didn’t dream of being James Bond or 99? Or to give it 21st Century local relevance, The Zohan?

I was taken to task last year over the comment that at Mt Scopus Army Cadets and Habonim last century, we thought we were in training for the Israel Defense Forces (IDF) for the next crisis. Perhaps my teenage thoughts were not shared by all, but they were certainly shared by many. There remains a culture in Jewish communities that we are part of Israel’s reserve and should be ready to contribute what we can, if called upon.

If one nationalism is dangerous, then supporting both ‘Australia Right or Wrong’ and ‘Israel Right or Wrong’ must multiply the potential perils.

Multiculturalism brings with it multiple loyalties, which can lead to personal conflicts, which I believe to be a core question that needs to be addressed.

In the 1990s, the Keating Government relaxed the dual citizenship provisions, by making it easier for expatriates who needed US or EU passports to regain their lost Australian citizenship. Anyone coming to Australia kept their original citizenship, unless their country, like Australia and the US, automatically revoked citizenship on the obtaining of a foreign citizenship. It made travel a lot easier to have an EU passport as well as an Australian.

But even the closest of nations have squabbles and an excellent example was when Bob Hawke’s Australia parted company with David Lange’s New Zealand over US nuclear ship visits. It divided Australia, and one can only wonder how it affected Kiwis living here. A more pertinent case is when Australia criticizes illegal Israeli settlements or passport theft. It’s not the rock and hard place we like to be caught between.

According to the Federal Attorney-General’s Department, it is legal to join a foreign army. But the following four paragraphs need to be read carefully. You can go to Israel or New Zealand and serve in their armies, but not if you intend to engage in hostile activity. The Attorney-General’s Department response to my questions is ambiguous. Do you intend to engage in hostile activity against the foreign country, or on behalf of the foreign country, and is there a difference in law?

It appears from the second paragraph (below) that if you go to Israel thinking ‘I shall make aliyah, become a citizen and do my time in the IDF’ then you are on safe ground. But if you write on Facebook ‘I’m going to join a combat unit to kill Arabs’ you are probably in breech of the law. It depends on what is in your mind and whether a court could prove it.

Under section 6 of the Crimes (Foreign Incursions and Recruitment) Act 1978 it is an offence for a person to travel to a foreign State with the intent to engage in a hostile activity in that foreign State or to engage in a hostile activity in a foreign State.

However, this offence does not apply where the act done by the person is in the course of, and as part of, the person’s service in any capacity in or with the armed forces of the government of a foreign State.

This recognises that there may be instances where Australian citizens, especially those who are dual nationals, wish to join the legitimate armed forces of a foreign State.

However, in circumstances where a terrorist organisation may be fighting as part of or alongside the armed forces of a foreign state, this defence is unavailable to the person if they are acting in or with that organisation.

It would be quite reasonable for an Australian in Auckland to join the New Zealand Defence Forces, or a Kiwi here to join ours. No one would think twice. We’re ANZACs, aren’t we?

But if a Jewish Australian has the right to join the Israel Defence Forces, surely an Arab-Australian has the right to join the uncontroversial British-based Jordanian Army? What about the Egyptian or Syrian Army? Or to more controversially, the Lebanese Army?

Are we uncomfortable with laws that allow Lebanese Australians to go to Lebanon and fight with the Lebanese Army? The fourth paragraph probably rules out serving in Hezbollah as its military wing is a proscribed terrorist organization, but there could be other approved militias that are not proscribed.

Importantly, what is reasonable today, might not be reasonable tomorrow and the Attorney-General’s spokesperson provided a recent ‘Fact sheet’ that explicitly says:

It is illegal under Australian law for any person in Australia, or any Australian citizen, including dual citizens, to provide any kind of support to any armed group in Syria. This includes: Engaging in fighting for either side; Funding, training or recruiting someone to fight; Supplying or funding weapons for either side

One day an Australian might find themselves on the wrong side in a conflict. Consider an Iraqi Australian visiting his grandparents and finding himself conscripted into Saddam’s Army in 2003, when John Howard joined George W Bush in that war?

In 1985 in Amman, I met exactly this case. A Palestinian American from New York was horrified that he had been conscripted into the Jordanian army because as a stateless Palestinian he only had a Jordanian identity permit. If I remember his words accurately, he said “All my friends are Jews. I’d rather kill Jordanians than Israelis. I don’t want to be in this f… army!” But his loyalties were not mixed. He was caught between countries.

Australian law remaining silent on which armies Australians can join is a recipe for disaster. Political allegiances can change.

The simple answer is to insert a phrase at the end of the second paragraph above: “with the expressed permission of the Australian Government”. This would mean that each person undertaking foreign military service would need to inform the Australian Government of their intentions and be recorded as doing so.

The Government might also print a warning on passport wallets just underneath the one on not smuggling drugs across borders, saying: It is not a good idea to fight in foreign armies without permission.

And the issue of foreign armies gets trickier when you move from basic to specialized roles.

I had a friend in London who said he was both Australian and British Special Air Services. He was certainly a very handy and self-reliant person and I didn’t question him closely on his roles. Had he been dropped into Iraq on behalf of the British to survey the terrain, he would be a ‘spy’. What would that mean under Australian law if he was not formally seconded to Britain?

We have Australian troops under US command in Iraq and Afghanistan and in 1985 I reported on the FRANZACS (French, Australian and New Zealand) helicopter pilots keeping the Camp David Peace Accords in the Sinai. With formal inter-government agreements there is no issue. But moving, as Ben Zygier did, from a simple IDF role to an espionage one is where the lines become blurred.

It appears that Australian spy organizations, either ASIS or ASIO, did know what he was doing. Under Australian law that should have crossed a line, at which point, for his own safety, the Australian authorities should have brought him home.

But here’s the rub. One Australian Facebook colleague posted that he remained proud of his IDF service.

So where was ‘home’ for Ben Zygier when Mossad arrested him? Would he have come back to Melbourne willingly if he was asked, or should ASIS have tried to kidnap him as Israel did Mordechai Vanunu?

The issues are not clear and neither is the law. It needs to be debated and the law modified.

And perhaps we need to remember that Commanders Bond and Zohan are just stories.

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